According to federal law, it is illegal to "make or offer an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate." It is also illegal to accept any such expenditure. Violations of the law are punishable by fines and/or imprisonment of up to two years. Voting promotions like the ones offered by brands are likely to come under fire particularly if they target specific areas based on assumed voting preferences. However, the law only applies if there are federal candidates on the ballot, so even Elihu Harris's attempt to win the 1999 California State Assembly race by sending mailers offering a free chicken dinner with proof of vote to African-American precincts is A OK according to federal law.

The illegality of exchanging free stuff for proof of voting came to light during the 2008 presidential election, when the stakes felt similarly dire, if not quite apocalyptic. Several major corporations offered up perks for voters—Krispy Kreme, Ben & Jerry's, and Starbucks among them. But when the Washington Attorney General's office contacted Starbucks to point out that this practice is illegal, many brands changed their promotions to include anyone, whether they had voted or not. Starbucks opted to use the honor system, and accepted a pledge to vote rather than an "I Voted" sticker in exchange for a free tall coffee. But they haven't run an Election Day promotion since. (This year's unity cup doesn't count.) Ben & Jerry's said in a 2008 press release that they had considered giving away free scoops to only those who voted, but re-considered given the potential legal consequences. Instead, they gave away free scoops to everyone on Election Day.

Krispy Kreme has consistently been offering election deals, giving away star-shaped doughnuts and doughnuts topped with patriotic sprinkles in the past. And while in 2008, they modified their Election Day deal, opting instead to accept mention of the promotion in exchange for a free doughnut, the Krispy Kreme website as it is now states that free doughnuts are "only available to those guests wearing a voting sticker on Election Day." I've reached out to Krispy Kreme for comment and will update this post if I hear back. Perhaps knowing that the risk of prosecution is low (the Department of Justice certainly has more important matters to deal with), Krispy Kreme has decided that getting out the vote any way they can is worth the risk of potential fines. The attempt at making tomorrow's election a bit sweeter is very much appreciated.